Joseph C. Magessa vs Tanzania Breweries Limited (Civil Appeal No. 517 of 2021) [2024] TZCA 783 (21 August 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCO RAM: MKUYE. J.A., KITUSI. J.A.. And ISSA. J.A.l CIVIL APPEAL NO. 517 OF 2021 JOSEPH C. MAGESSA ....... . ............. . ........................................APPELANT VERSUS TANZANIA BREWERIES LIMITED ....................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania (Labour Division) at Mwanza) (Nverere, J/ l dated the 20th day of October, 2017 in Labour Misc. Application No. 23 of 2015 JUDGMENT OF THE COURT 14*8121s t August, 2024 ISSA, J.A.: The dispute between the parties has had a chequered history. The parties have been tangled in a legal thicket for the past 17 years. The following brief background facts will serve the purpose of appreciating the essence of the present appeal. The appellant was a technician who was employed by the respondent in 1997. While working for the respondent the appellant had an opportunity to purchase some spare parts. In 2007 there was a machine breakdown in the respondent's factory and the

respondent needed the spare parts which were in the possession of the appellant. The parties agreed the terms of .payment and the spare parts were fixed in the machine and the production continued. Unfortunately, the respondent did not honour her side of the agreement, hence, one day at midnight the appellant went to the factory and removed the spare parts. The watchman stopped him at the gate while trying to leave. The respondent was furious with the act of the appellant which hampered the production at the factory for some time. She initiated disciplinary proceedings which ended in the termination of the appellant. Aggrieved, the appellant referred his complaint to the Commission of Mediation and Arbitration (the CMA) which delivered its award in favour of the appellant on 15th October, 2007. The respondent was ordered to pay the appellant his gratuity and one month salary in lieu of notice of termination amounting to TZS. 1,642,998.90. The appellant was dissatisfied with the decision, he filed at the High Court (Rweyemamu, J. as she then was) an application for revision of the award. The court on 10th March, 2010 delivered its decision in which it found that the CMA heard the appellant's time-barred application before the application for condonation of delay was determined. Hence, it remitted the dispute back to the CMA for a fresh hearing. Upon fresh hearing, the CMA dismissed

the application for condonation of delay on 28th October, 2010. Hence, the main application was also dismissed. Still aggrieved, the appellant approached the High Court with an application for revision of the CMA decision vide Revision No. 20 of 2010. The court revised the CMA decision and granted the condonation. The dispute was remitted to the CMA for a fresh hearing. After a fresh hearing, the CMA on 3r d January, 2012 delivered the award in which the appellant was ordered to be paid by the respondent 10 months salaries. Dissatisfied, the appellant filed an application for revision of the award at the High Court (Rweyemamu, J) vide Revision No. 60 of 2013. The court delivered its judgment on 19th February, 2014 in favour of the appellant. The respondent was ordered to pay him 12 months salaries, severance pay and transport payments. The appellant started execution proceedings vide Execution Application No. 11 of 2014 and he was claiming TZS. 364,567,400.00. This time it was the respondent who was dissatisfied, she filed at the High Court an application for review vide Misc. Application No. 23 of 2015. The application met with objections from the appellant which were dismissed by Mipawa, J. With respect to the application for review, it was heard by Nyerere, J. who delivered her decision on 20th October, 2017 in

which she vacated the order of payment of transport allowance, but the orders of payment of 12 months salaries and severance pay were maintained. The appellant refused to throw down the towel, he approached this Court with the instant appeal predicated on three grounds which go thus:

1. That the High Court erred in law by entertaining a review application which was not a proper remedy for the appellant/respondent herein.
2. That the High Court erred in law by entertaining a Review application without havingjurisdiction to do so.
3. That the High Court judge erred in law by entertaining the Review Application without being vested with the power to do so. At the hearing of the appeal, the appellant was represented by Mr. Andrew I. Luhigo whereas the respondent had the services of Mr. Silwani Galati Mwantembe, also learned advocate. Taking the floor, Mr. Luhigo adopted his written submission filed earlier on and had nothing to add. When probed by the Court regarding the use of Civil Procedure Code, Cap. 33 (the CPC) in the labour matters, Mr. Luhigo submitted that the CPC is used when there is a lacunae in the law. In this case there is Labour Court Rules, 2007, G.N. No. 106 of 2007

(the Labour Rules) which is applicable and regulation 27 talks about review, but it is silent about what should be done when the judge is no longer in office. His position regarding what Nyerere, J. did in the application for review was that, the judge should have explained about her jurisdiction before hearing the review. Further, the explanation should have featured in the proceedings and not in the judgment. Mr. Mwantembe also adopted his written submission filed earlier on. In response to the grounds of appeal, he submitted that the appellant has filed three grounds of appeal which boiled down to two issues: one, whether Nyerere, J.'s reason to review the judgment of Rweyemamu, J. falls in the grounds of review, and two, whether Nyerere, J. was right to review the decision of another judge of the same court. With respect to the first issue Mr. Mwantembe submitted that section 43 (1) of the Employment and Labour Relations Act, Cap. 366 (the ELRA) provides that where an employee is terminated in a place other than the place of employment, the employer is required to transport him to a place of employment. He argued that by necessary implication this means there must be a ground that the appellant was terminated in another place, and that ground must be determined before transport allowance is granted. In this case, he said, the issue of repatriation was

not brought by any of the parties. Therefore, it was a new issue, and makes it a ground of review under rule 27 (2) of the Labour Rules which laid down three grounds: error apparent on the face of record, discovery of new object and for any other sufficient reason. He added that in this case, there was a letter of employment of the appellant which shows that he was employed at Mwanza and there was a letter of termination which shows that he was terminated at Mwanza. Therefore, granting the appellant transport allowance is an error apparent on the face of record. Further, he submitted that granting the transport allowance without hearing the parties falls in the ground termed as "any sufficient reason". He submitted that the grounds of review were valid ones. With respect to the second issue, Mr. Mwantembe argued that the issue in contention is whether Nyerere, J. was required to give reasons before or after the hearing. He submitted that it would have been appropriate to give reasons before hearing of the application for review, but really what matters is the reasons. If there was no valid reasons then she was not supposed to preside in the proceedings. He added that, it is not clear how the appellant was prejudiced by the reasons being given in the judgment. He prayed for the appeal to be dismissed.

In the rejoinder, Mr. Luhigo argued that there was no valid ground of review. Starting with the apparent error on the face of record, he cited the case of Chadrakant Joshuabhai Patel v. The Republic [2004] T.L.R. 218 which says it must be an error which can be seen by anyone who runs and reads. He submitted that, in this case one has to search through the records of the CMA to find out that the issue was not discussed by the parties. With respect to the discovery of a new matter, Mr. Luhigo submitted that in the application filed by respondent all the grounds for review were apparent errors on the face of record, there was no issue of discovery of anything. He submitted that this is an afterthought. Responding to the issue of the right to be heard, Mr. Luhigo submitted that the parties were heard on the application for revision. Hence, if there was any error it was not on the right to be heard. He prayed for the appeal to be allowed. The Court will follow a similar path and will address the two issues raised and discussed by the learned counsels. The first issue is whether Nyerere, J. had jurisdiction to entertain the application for review. The issue of review in labour matters is governed by rule 27 of the Labour Rules and of particular importance is rule 27 (2) and (9) which provides:

"(2) Any person considering himseif aggrieved by a judgment, decree or order from which - (a) an appealis allowed, but from which no appeal has been preferred; or (b)no appeal is allowed, and who, from the discovery o f any new and important matter or evidence which, alter the exercise o f due diligence, was not within his knowledge or could notbe produced by him at the time when the judgment or decree was passed or order made, or on account o f some mistake or error apparent on the face o f the record, or for any other sufficient reason, desires to obtain a review o f thejudgment, decree or order made against him, (c) may apply for a review o f the judgment, decree or order to the court. (9) Where the Registrar receives a statement o f response in terms ofsubrule (8) or the time limit for filing o fthe statemento fresponse lapses, whichever occurs first, the review shall, subject to the provisions o f subsection (3) of section SO of the Act, be placed before the presiding Judge and assessors who passed the decision for hearing and decision". (Emphasis supplied). 8

The above rule stipulates that there are three grounds which can be used to ask for a review of the labour matter. These grounds are:

1. When the applicant discovers any new and important matter or evidence which, after the exercise o f due diligence, was not within his knowledge or could not be produced by him at the time when the judgment or decree was passed or order made.
2. When there are some mistakes or errors apparent on the face o f the record, and
3. For any other sufficient reason. In the instant appeal, the respondent filed Misc. Application No. 23 of 2015 at the High Court in which she asked the court to review its decision in Revision No. 60 of 2013. The memorandum of review contained three grounds, namely: "(i) That there is an error apparent on the face of the records in as much as the Honourable Court awarded the Respondent transport payments which has never been at issue before the Commission for Mediation and Arbitration nor before it; and (ii)That there is an error apparent on the face o f the records in as much as the Honourable

Court awarded the Respondent transport payments undersection 43 o f the Employment and Labour Relations Act No. 6/2004 while he is not entitled to any o f such payments as he was employed at Mwanza, his place of domicile and terminated at Mwanza; (iii) That there is an error apparent on face o f the records in as much as the Honourable Court awarded transportpayments without affording the parties opportunities to submit on it thereby contravening a cardinal principle of naturaljustice." It is trite law that parties are bound by their pleadings. The ground used in applying for review was the presence of an error apparent on the face of the records. The issue of discovery of new important matter and any other sufficient reason are new grounds which were advanced in the submission of Mr. Mwantembe. They were never raised at the High Court and we dismiss them out-rightly. Our next enquiry is whether the circumstances of the instant case falls on the ground of the error apparent on the face of record. The answer entails understanding of what is apparent error on the face of record? The Court in various cases including Chandrakant Joshubai Patel v. The Republic (supra), Edger Kahwili v. Amer Mbarak and 10

Another, Civil Application No. 21 of 2017 [2020] TZCA 20 (23 February 2020, TANZUI), Interbest Investment Company Limited v. Standard Chartered Bank T. Limited (Civil Application No. 523 of 2018) [2022] TZCA 550 (31 August 2022, TANZLII) and Grand Alliance Limited v. Wilfred Lucas Tarimo and 4 Others (Civil Application No. 229 of 2020) [2022] TZCA 541 (7 September 2022, TANZLII) addressed the issue of apparent error on the face of record. In Chandrakant (supra), the Court quoted the book by Mulla on the Code of Civil Procedure (14 ed.) pages 2335 - 2336 where the learned authors wrote: "An error apparent on the face o f the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which be established by a long drawn process of reasoning on points on which there may conceivably be two opinions... It can be said o f an error that is apparent on the face o f record when it is obvious and self evident and does not require an elaborate argument to be established." (Emphasis supplied) 11

The Court further devised a formula in determining whether the error complained of is a manifest error apparent on the face of the record. It said: "First, there ought to be an error, next the error has to be manifest on the face o f the record, finally, the error must have resulted in miscarriage o fjustice. The three ingredients must have to co-exist in order for the error to be capable o fgrounding a review". Applying the above principles to the instant appeal, the error which the respondent was complaining before the court was centred on the issue of payment of transportation to the appellant. The argument in support is that: one, the court awarded transport payment which has never been at issue neither at the CMA nor before the High Court. Two, the court awarded the payment under section 43 of the ELRA while the appellant was not entitled as he was employed at Mwanza and terminated at Mwanza. Three, the payment was awarded without affording the parties opportunities to submit on it. Fortunately, the learned counsel are at one that these errors existed in the impugned decision. The point of divergence is whether it is apparent on the face of record or need long drawn process to be established.

The record in the instant application is the judgment in Revision No. 60 of 2013. On page 419 of the record of appeal, the learned judge reproduced the four grounds for revision. None of them had any bearing on payment of transportation allowance. Hence, it was not a claim before the court and no party submitted on that issue. On page 420, the learned judge formulated three issues for determination, but none of them reflected the issue of payment of transport allowance. Finally, she deliver her order in the following words: "I quash the Arbitrator's award and in its stead using the powers vested in this Court under section 91(4) (a) and (b) o f the ELRA, I order the respondent to pay the applicant compensation in the sum equivalent to 12 months salary at the rate he was earning at the time he was 'dismissed'. Due to the circumstances o f the admitted misconduct explained above, I order that the applicant be paid severance he is entitled to under the law. The applicant is also entitled to transport payments in terms of section 43 of the ELRA respectively. This application succeeds to that extent. (Emphasis supplied). The issue of transport payments appeared for the first time at the end of the judgment. We are of the firm view that this is an error, and it IB

is an error apparent on the face of the record. It was neither pleaded nor argued by any party. Even the court itself did not raise it as an issue, it is only found at the end of the judgment. On the issue of miscarriage of justice, the answer is affirmative it did cause miscarriage of justice. The court ordered the respondent to pay what he probably was not required to pay and the appellant received what he probably was not entitled. This is a miscarriage of justice. Therefore, Nyerere, J. had the jurisdiction to entertain the application for review as it falls under one of the grounds allowed for review. This issue lacks merit and is dismissed. The last issue faulted Nyerere, J. for presiding in the application for review of a matter heard by another judge of the same court in contravention of rule 27(9) of the Labour Rules. When the Court probed the learned counsel regarding what should have been done in the circumstances where the judge who presided the application for revision is no more, or has retired. All were at one that, the successor judge may step in the shoes of the predecessor judge and hear the review. But Mr. Luhigo has qualms with the way Nyerere, J. handled the information and reasons for her takeover which were narrated in the judgment to the effect that Rweyemamu, J. has retired and she had no option but to step in her shoes. Mr. Luhigo argued that the parties should 14

have been informed before hearing and the reasons should appear in the proceedings. Mr. Mwantembe, on the other hand, was of the view that, it did not matter where the reasons were given as long as there was a valid ground for review. Perusing the record of appeal, we find this issue is a non-starter. Immediately after the application for review was filed, the appellant lodged a notice of preliminary objection and one of the objections was that: the present application ought to have been presided over by the judge who presided over the case and delivered the judgment The objections were heard by Mipawa, J. who dismissed the objections and wrote on page 449 of the record of appeal that Hon. Rweyemamu had been transferred to the High Court main registry. Hence, assigning her to come and hear the review would require the permission from the Chief Justice. It is noteworthy that, the appellant was aware that the hearing of the review application will be presided by another judge. This information was conveyed during the hearing of the preliminary objections. Therefore, the fact that Nyerere, J. gave her reason about why she presided over the hearing of the review application in the judgment did not prejudice the appellant in any way as he knew that fact before hearing. Therefore, this issue also lacked merit and is dismissed. 15

In view of what we have discussed, we are satisfied that the appeal has no merit and we dismiss it. We make no order as to costs as this is a labour matter and no party pressed for it. DATED at MWANZA this 20th day of August, 2024. R. K. MKUYE JUSTICE OF APPEAL I. P. KITUSI' JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 21s t day of August, 2024 in the presence of the Appellant who appeared in person, and Mr. Iche Mwakila learned counsel for the Respondents, is hereby certified as a true copy of the original. MlflLl A. S .' CHfjGULU DEPUTY REGISTRAR COURT OF APPEAL 16